Ninth Circuit Reverses NLRB Decision Denying Protection to Worker Sexual Harassment Protests

On April 28, 2021, the United States Court of Appeals for the Ninth Circuit issued its decision in SEIU Local 87 v. NLRB (Preferred Building Services), reversing a decision by the National Labor Relations Board that had upheld the firings of workers who had protested sexual harassment and other intolerable working conditions outside an office tower.

The underlying unfair labor practice charge arose when janitorial services workers at an office building in downtown San Francisco decided to stage picket-line protests outside the building in which they worked, in response to their supervisor’s harassment and wage-and-hour violations.  In response to the protests, several workers were fired, and the janitorial services contractor terminated its contract to service the building.  The NLRB’s General Counsel alleged that the workers’ termination in response to the protests violated the National Labor Relations Act’s prohibition on retaliating against workers for engaging in protected, concerted activity.  After a multi-day hearing, an NLRB Administrative Law Judge agreed.  The NLRB, however, reversed the ALJ’s decision, concluding that the workers’ protests were unprotected because they impermissibly targeted neutral “secondary” parties –specifically, the building manager and tenants of the building where they worked.  The Ninth Circuit reversed, concluding that the NLRB had erred in concluding that the workers’ protests had a “secondary” object.

Altshuler Berzon LLP represents SEIU Local 87, which filed the unfair labor practice charge with the NLRB and the Ninth Circuit petition for review.  A news report about the decision is available here.  A copy of the decision is available here.